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Commonwealth v. Arthur

Appeals Court of Massachusetts, Suffolk

October 1, 2018

COMMONWEALTH
v.
ANTHONY ARTHUR.

          Heard: May 8, 2018.

         Indictments found and returned in the Superior Court Department on April 1, 2016. A pretrial motion to suppress evidence was heard by Robert B. Gordon, J.

         An application for leave to prosecute an interlocutory appeal was allowed by Geraldine S. Hines, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court.

          Cailin M. Campbell, Assistant District Attorney (Caitlin Fitzgerald, Assistant District Attorney, also present) for the Commonwealth.

          Michael L. Tumposky for the defendant.

          Present: Sullivan, Neyman, & Englander, JJ.

          ENGLANDER, J.

         This case presents the question whether the police unreasonably delayed obtaining a warrant to search the contents of cellular telephones[1] (second warrant), where those cell phones had already been properly seized pursuant to a lawful first warrant and were being held as evidence pending trial. A Superior Court judge held that the delay in seeking the second warrant was unreasonable under Commonwealth v. White, 475 Mass. 583 (2016), and suppressed the fruits of the search conducted pursuant to the second warrant. We reverse, concluding that the delay in seeking the second warrant was not unreasonable, where the cell phones were already lawfully in police custody and were reasonably expected to remain so until trial.

         Background.[2]

         On December 15, 2015, the defendant and two accomplices, Richie Williams and Keyarn Richardson, participated in a coordinated attack on a home at 7 Morse Street in the Dorchester section of Boston. Much of the attack was witnessed by various Boston police officers, who were in the area at the time. At approximately 4:30 P.M. two cars drove onto Brinsley Street, one street away from and parallel to the block of 7 Morse Street. The defendant was driving one of the cars and was alone. Williams was driving the other car, with Richardson in the front passenger seat. Both cars parked on Brinsley Street, facing in the same direction.

         Shortly after parking, Williams and Richardson got out of their car (leaving the engine running), walked briskly down Brinsley Street, and turned onto Ronald Street (a cross street), heading in the direction of Morse Street. Shortly thereafter, Richardson was observed stepping behind a Dumpster, taking out a firearm, and "chamber[ing] a round into the firearm." He thereafter was observed on Morse Street handing a firearm to Williams.

         At the same time that Williams and Richardson were walking toward Morse Street, the defendant got out of his car on Brinsley Street and began peering through the yards toward the area of 7 Morse Street "as if he was waiting to see something occur."

         Shortly thereafter, shots were heard coming from Morse Street. Williams and Richardson then were observed running down Morse Street, with Williams holding a gun in his hand. Police officers ordered them to stop, but Williams continued running to Brinsley Street and, after discarding his firearm, got into the passenger seat of the defendant's car. The defendant had, by this time, returned to his car, but before he could drive away with Williams they were stopped and arrested by the police. Later, the police confirmed that multiple bullets had been fired into the home at 7 Morse Street, although no one had been injured.

         An officer on the scene observed two cell phones in the defendant's car -- one on the driver's seat and one on the front passenger's seat. The officer observed three cell phones in the car initially driven by Williams -- two on the driver's seat ...


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